Digital Emotions: The Evidentiary Impact of Emoticons and Emojis

11.16.15

By
Karen A. Henry and Jason Harrow

When computer science professor Scott Fahlman posted a sideways smiley face on an electronic message board at Carnegie Mellon University in 1982, he could not possibly have known that combination of dots and dashes would give birth to a whole new digital language. Indeed, what started with a single :-) has become a deluge: Instagram recently reported that emojis appear in roughly half of the many millions of comments and captions added to online photos each day. And emojis are practically taking over Twitter: the “face with tears of joy” emoji alone () has appeared in nearly 1 billion tweets in the last two years.

As emoticons and especially emoji explode in popularity and appear in more of our written communications, they inevitably raise legal questions. For instance, can an emoticon or emoji change the meaning of an email, text message, online chat, or blog post in which it appears? Do emoticons and emojis tell us something about the author’s state of mind? And how should emoticons and emojis be described to juries or displayed in court opinions? These are just a few of the questions courts are grappling with, and while definitive answers remain elusive, the legal landscape is very much under construction.

Emoticons vs. EmojisMany people use the terms “emoticon” and “emoji” interchangeably, but while these symbols may belong to the same digital family, they are distinct.

Emoticons are the simpler of the two kinds of symbols. Emoticons are groups of keyboard characters—mostly punctuation marks—that are used to represent facial expressions. Anyone with a keyboard can send and receive an emoticon. Examples include happy faces, like :-) or :), kissing faces, like :*, expressionless faces, like :|, and many, many more. Emoticons are usually used to express emotion or assist the reader in some way in interpreting the text—by, for instance, expressing the idea that the preceding sentence was just a joke. :-P. [Yes; that is supposed to be a face with a tongue sticking out.]

Emojis, in contrast, are emoticons’ younger, more sophisticated, cousins. They are detailed, pictographic symbols, not just symbols made up of pre-existing keyboard characters. Sending and receiving emojis therefore requires software that can display hundreds of unique characters, from the aforementioned “face with tears of joy,” to country flags, aliens, sports equipment, vehicles, hearts, and many other symbols—including one perplexing new addition, “man in business suit levitating” ().

Although invented in Japan in the late 1990s, the use of emojis has exploded in the last five years, after character symbols were added to an international character standard called Unicode. Many smartphone software platforms, notably Apple’s iOS and Google’s Android, then added built-in support for emoji characters through the use of different virtual keyboards that users easily can activate. Thus, just as international users may toggle to a new keyboard to input Chinese characters or Hebrew letters, so too may smartphone users now input emoji characters at the touch of a button. The fact that hundreds of millions of smartphone users have instant access to the wide range of emoji characters has led to an explosion of emoji usage around the globe.

Emoticons And Emojis As EvidenceWith so many emojis and emoticons being transmitted online and in text messages, it was inevitable that they would end up in communications used as evidence in court cases. But what do they mean? And, equally important, when their meaning is in dispute, who should resolve the conflict, the court or the jury? While these questions recently have arisen in a variety of civil and criminal cases, the answers remain largely unsettled.

For instance, the evidentiary value of emoticon/emoji evidence was examined fairly recently in Lenz v. Universal Music Corp. (widely referred to as “the Dancing Baby” case). In that case, plaintiff Stephanie Lenz moved for summary judgment on six affirmative defenses asserted by Universal in response to Lenz’ copyright claim. Of particular relevance, Universal argued Lenz alleged in bad faith that she had been “substantially and irreparably injured” by its takedown notice. To support this argument, Universal proffered an email exchange between Lenz and her friend. In that exchange, the friend writes, “love how you have been injured ‘substantially and irreparably’ ;-).” Lenz, in turn, responds, “I have ;-).”

Universal contended that Lenz’s use of the “winky” emoticon signified that she was “just kidding.” Lenz countered that her use of the “winky” emoticon replied to the “winky” in her friend’s email, which basically was teasing Lenz about using lawyerese in her complaint—i.e., “substantially and irreparably injured.” The court sided with Lenz, finding Universal’s proffered evidence insufficient to prove Lenz acted in bad faith and granting summary judgment in Lenz’s favor on that affirmative defense.

Emoticon and emoji evidence also has been examined in two recent, high-profile, criminal cases. In the so-called “Silk Road” trial earlier this year in the Southern District of New York, for example, defendant Ross Ulbricht was charged with operating an online drug market. Much of the evidence against him consisted of emails and chat logs containing various emojis and emoticons. Initially, the prosecution read the logs to the jury without mentioning these symbols. After the defense objected, however, the court required the prosecution to note to the jury the presence of “the punctuation and emoticons” in the logs because they were “part of the evidence of the document.” This lead to the prosecution saying the word “emoticon” in place of each symbol, although the prosecution apparently did not describe the actual symbol or attempt to convey its intended meaning. Eventually, the defendant was convicted on all counts. Perhaps the Second Circuit will be forced on appeal to decide whether this solution was adequate to convey the information contained in the chats.

The United States Supreme Court recently was presented with emoticon evidence in a case dealing with the interpretation of a statute prohibiting threatening communications. The defendant in Elonis v. United States had argued that his conviction for posting threatening communications on Facebook should be reversed in part because the presence of emoticons in some of the posts made them “subject to misunderstandings” and not as threatening as they would otherwise have been. For example, one of the defendant’s posts said that his son should dress up as “matricide” on Halloween, perhaps by wearing a costume of her “head on a stick.” He followed that post with an emoticon of a face with its tongue sticking out. He argued that the emoticon signaled that he was joking, but his wife interpreted the tongue sticking out in that context as an insult.

Ultimately, the Supreme Court did not wade into the meaning of that emoticon, nor signal how emoticons should be presented or interpreted. Rather, it reversed the conviction without reference to that post or the complications that emoticon evidence may pose. Thus, any definitive statement on the federal law of emojis and emoticons will have to wait for another day.1

The Next Frontier: Embracing Emoticons And EmojisPerhaps because many judges have not found most emojis or emoticons to be critically important to the interpretation of a piece of evidence, many recent opinions do not actually display specific emoticons or emojis. Instead, like the court in the “Silk Road” case, they simply note their presence. Thus, court opinions from this year have contained bracketed descriptions saying “[winking smiley face emoticon]”; noted that one text message under consideration contained “a winking emoticon as punctuation”; or stated that a tweet contained “[five laughing emojis].” In contrast, one recent district court opinion from a federal court in Connecticut actually reproduced a smiley face emoji contained in an important email and then used the novel parenthetical “emoji in original” to indicate that the email had been reproduced accurately.

Both approaches have their benefits, but courts should be encouraged to include actual emojis and emoticons in their opinions when possible. After all, as emoji use has exploded, so too have the number of emojis contained in the Unicode standard. The Unicode standard now supports over 800 of them; the Apple emoji character set, which allows for additional modifications of some emojis, now has 1,620 distinct emojis. With this many emojis, it is difficult to pin down which one is the “laughing emoji” to which the court above might have been referring. Was it “grinning face” ()? “Grinning face with smiling eyes” ()? “Face with tears of joy” ()? Or perhaps it was “smiling face with open mouth and smiling eyes” (). The point is that with over 1,000 possibilities, noting the presence of an emoji conveys very little information; describing it conveys some more but can still lead to confusion with this many options. Since emojis can contain such nuanced information—the days of a simple smiley face have given way to a character set of approximately 70 different facial expressions —it will soon become imperative to show the characters themselves so that the reader can understand the information conveyed by the emoji.

But courts and litigants must exercise caution when they select the emojis to incorporate into opinions or show to a jury. Emoji character sets display differently on the various platforms: for example, the “alien monster” emoji looks playful in LG’s character set (), like an old video game alien on an iPhone (), but downright scary in Samsung’s Galaxy S5 set (). Which one did the sender mean to convey? Which should be shown to a jury?

These are difficult questions that most courts have not yet begun to consider. But many more meaningful encounters with emojis are doubtless coming soon, as more and more of our written communications incorporate them. Whether judges will embrace this new form of communication and view emojis through a “smiling face with smiling eyes” () or the more dour “face with cold sweat” () is still to be determined.

FOOTNOTE

1 Not surprisingly, courts in the United States are not the only ones facing these issues. Emoticons and emojis are used on a global scale and courts in other countries also are faced with evaluating emoticon/emoji evidence. For instance, in McAlpine v. Bercow, [2013] EWHC 1342 (QB), the English courts concluded that an “*innocent face*” emoticon included in a tweet linking Lord McAlpine—the former Deputy Chairman of the Conservative Party—with a child molestation scandal did not shield the tweet’s author from liability for defamation.

Disclaimer

This advisory is a publication of Davis Wright Tremaine LLP. Our purpose in publishing this advisory is to inform our clients and friends of recent legal developments. It is not intended, nor should it be used, as a substitute for specific legal advice as legal counsel may only be given in response to inquiries regarding particular situations.